GUNERATNE v. APPUHAMI.

Present: The Hon. Mr. A, G. Lascelles, Acting Chief Justice, Mr.
Justice Middleton, and Mr. Justice Wood Renton.

GUNERATNE v. APPUHAMI.

D. C., Kurunegala, 1,829.

Statute-Retrospective application-Statute enacting procedure-Pending actions-Absence of administration-Matter of substance-Civil Procedure Code, s. 547-Ordinance No. 12 of 1904, s. 2.

Retrospective effect should not be given to a statute dealing with matters other than procedure, unless it is made retrospective by express enactment or by necessary intendment.

The administration of an intestate estate is not a mere matter of form or procedure, but is a matter of substance.

Judgment of the Privy Council in Ponnamma v. Arumogam (8 N. L. R. 223) followed.

Section 2 of Ordinance No. 12 of 1904, which enacts that " no action for the recovery of, or involving proof of title to, any property, movable or immovable, belonging to or included in the estate or effects of any person who died intestate before the commencement of this Ordinance, shall be defeated, nor shall the title to such property claimed through such person be deemed invalid, by reason only that letters of administration to the estate or effects of such person have not issued. "

Held,-Not to be applicable to actions pending when the Ordinance was passed.

Silva v. Swaris (1 Balasingham 61) over-ruled.

Judgment of the Privy Council in Colonial Sugar Refining Co. v. Irving (74 L. J. P. C. 77) followed.

MIDDLETON J.-An appeal to the Supreme Court is not a re-hearing.

THE plaintiff instituted this action in March, 1900, against the defendant for a declaration of title to a land. The plaintiff alleged that one Dingiri Banda was by virtue of a deed of gift No, 6,832, dated 3rd July, 1870, and by maternal inheritance the owner of the land in question, and that he by deed No. 2,806, dated the 14th day of December, 1887, transferred the same to the plaintiff. The defendant objected that the plaintiff could not maintain the action without taking out letters of administration to the estate of Dingiri Banda's mother Punchi Menika, who died about the year 1880. The District Judge (Mr. Baumgartner) over-ruled the objection and held that administration was unnecessary. In appeal the Supreme Court reversed the order of the District Judge and held that administration was necessary, unless the plaintiff could prove that Punchi Menika's -estate was under Rs. 1,000 in value, and remanded the case to the District Court for further hearing(1(1903) 7 N. L. R. 299.). Before the further hearing

In the Court below Ordinance No 12 of 1904 was passed which enacts as follows:-

" 2. There shall be added to section 547 of " The Civil Procedure Code, 1889," the following provisos, namely:

"Provided always that no action for the recovery of, or involving proof of title to, any property, movable or immovable, belonging to or included in the estate or effects of any person who died intestate before the commencement of this Ordinance, shall be defeated, nor shall the title to such property claimed through such person be deemed invalid by reason only that letters of administration to the estate or effects of such person have not issued.

" Provided further that the transferor and transferee of such property as is mentioned in the foregoing proviso shall not be guilty of the offence created by this section."

After hearing evidence the District Judge (Mr. Hill) held that Punchi Menika's estate was over Rs. 1,000 in value, but that administration was rendered unnecessary by the operation of Ordinance No. 12 of 1904. His judgment was as follows: -

" Plaintiff brings this action for a declaration of title to the" land Andiagollehena and for ejectment of defendant, who resisted his taking possession of the land, and for damages.

" The facts are briefly these. One Dingiri Banda obtained the property in dispute by inheritance from his mother together with other lands. In

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